Ollosson v Lee

Informed consent requires a doctor to take reasonable care to ensure that a patient understands material risks, including their possible severity and impact. Materiality is determined by the court, applying the circumstances of the particular patient; it is not governed by Bolam or expert evidence alone. Percentages are not invariably required. Describing a risk as “small” may be adequate where the description conveys its magnitude and the patient is told the possible range and consequences of the risk. An elective procedure may proceed where the patient has adequate time and space for dialogue, understands the risk, and remains willing to accept it.

The claimant underwent an elective vasectomy performed by the defendant general practitioner and later developed chronic scrotal pain. He alleged that the information provided about the risk of chronic pain was inadequate and that, with proper information, he would not have proceeded.

The court considered the pre-operative booklet and consent form, the discussions with the defendant and nurse counsellor, the expert evidence, and the claimant’s evidence about what he would have decided. The central issues were whether the warning was adequate under the law of informed consent and, if not, whether the breach caused the operation to occur.

1. Claim dismissed. The claimant was adequately informed and gave properly informed consent.

2. Under Montgomery v Lanarkshire Health Board [2015] UKSC 11, the doctor must take reasonable care to ensure that the patient is aware of material risks. Materiality is assessed by the court. It depends on whether a reasonable person in the patient’s position would attach significance to the risk, or whether the doctor should reasonably appreciate that this particular patient would do so. The assessment is fact-sensitive and includes the nature and potential effect of the risk, the benefits sought and available alternatives.

3. The court adopted the distinction, reflected in Duce v Worcester Acute Hospitals NHS Trust [2018] EWCA Civ 1307, between identifying risks known to medical professionals and deciding whether they should be disclosed. The latter question is not determined by Bolam or expert evidence alone.

4. The booklet was insufficient on its own because of tension between its statement that there was no evidence of long-term physical or mental health risks and its reference to chronic pain. However, the face-to-face consultation occurred without pressure and provided adequate time for dialogue. The claimant was told that chronic testicular pain was a small risk, greater than the rare and remote failure risks, and that it could be long-term, range from mild to severe, occur frequently, and affect his life and lifestyle. That was sufficient. A percentage was not required.

5. The circumstances differed from Thefaut v Johnson [2017] EWHC 497, where a brief discussion immediately before surgery did not provide adequate time and space. Here, the claimant could still ask questions and withdraw.

6. Causation was not decided because informed consent had been established. The judge nevertheless observed that even disclosure of a risk described as “not uncommon” or quantified at about 5 per cent would probably not have altered the claimant’s decision.